Serious Dangers in Chambers Applications

The Court of Appeal has issued a carefully-written and researched judgment which every litigation lawyer should read. (It is cited near the end of this blog.) The appeal was from Anton Piller orders and Mareva injunctions and similar freezing orders. But the Court’s discussion is not confined to such topics. In particular, it is based on the principles applying to all applications without notice (ex parte motions). And family law lawyers should read the Court of Appeal decision. That is foreshadowed by the cautions in a family law decision, Boychuk v. Boychuk 2017 ABQB 428 (Jul 7).

In a contested trial or chambers motion, of course a lawyer cannot mislead the court by stating what is not in evidence, or is contrary to all the evidence. But in contested cases the lawyer needs to lead only evidence favorable to his or her client. It is up to the opposing lawyer to cross-examine or rebut with contrary witnesses or evidence.

The rules are very different if some or all of the parties on the other side are not present, especially if they never got notice of the hearing. Then the lawyer making the application must tell the judge or master all the relevant facts that the lawyer knows, even those harmful to that lawyer’s client. (Self-represented parties have the same duty.) Police officers moving ex parte to get a search warrant usually give lengthy fact disclosures to avoid later reversal of the search warrant. All Alberta judges are used to the implications of that concept from criminal cases. Civil lawyers have not learned yet to go very far down that road.

Failure to tell the judge some such facts may well lead to reversal of the order got ex parte. Even if the evidence given may have been enough to justify the order.

And the costs consequences of nondisclosure and reversal will probably be significant. Worse still, most interlocutory injunctions and similar orders require an undertaking by the applicant to pay any losses caused by giving an injunction which should not have been granted. So the lawyer's client may have to reimburse very large business losses. If the nondisclosure was not the client's fault, the client will want the lawyer to foot that bill. Nor will such a reversal for nondisclosure do anything to enhance the lawyer’s reputation.

Even if full disclosure was made, having applied without notice brings other dangers. Such ex parte applications are usually supposed to be for emergencies, and the fact that the motion had been planned for a long time is some evidence that notice should have been given to the opponent. Or is evidence that the danger was not as great as claimed.

The more drastic the injunction or order obtained, the stronger should have been the evidence used to get it. That evidence must be strong with respect to every person caught by the order, so bringing in associates or family members on slight grounds is forbidden. An injunction should never be broader than necessary, in content, time, people, or geography. Precise names and places should be used, not generic terms such as “all persons who may ...”. And ancillary terms unnecessarily restraining the parties to the suit, or others, are forbidden. Such flaws alone can be ground to reverse the order, or to cut it back and trigger costs and the undertaking as to damages.

English courts and some Alberta decisions have said for a long time that an ex parte order should not last indefinitely, nor put the onus on the person restrained or compelled, to move to set it aside. The Alberta Bar has largely ignored that, especially in family law cases. But the recent Court of Appeal decision reiterates that rule. An ex parte injunction or similar order should last only for a very limited time. Then the party who got it will have to move on notice to renew it.

Even when an order was not got ex parte, there can be separate dangers. Getting orders to obtain any kind of information from the opponent bring some liabilities. The old “implied undertaking” principles are in full force. Very limited use can be made of the information so obtained. Indeed after a civil search (Anton Piller order), the information may have to be sealed, and not be automatically open to inspection by the party getting the order, nor its lawyers. There may be legal requirements to put into the order express restrictions on such use of the information. And ordinarily a search of a law office or an accountant’s office is not justified.

Some very stringent orders, such as Anton Piller orders for searches of premises, or orders freezing assets, should contain a considerable number of conditions to protect the person enjoined. Independent counsel to supervise, or leaving unfrozen enough funds to live and to litigate, for example. Omission of such conditions may be a ground to upset the order.

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.